Did ESPN Curtail Curt Schilling’s Right to Free Speech?

On last week’s episode of “All Things Legal” on 105.5, Craig Ashton and company discussed Curt Schilling’s recent social media woes, and the limitations of the Constitutional right to free speech.

The Background on Schilling’s Social (Media) Faux Pas

For those who don’t know, Curt Schilling is a renowned former Major League Baseball pitcher who has a couple of World Series rings to his name. He is perhaps best known for the infamous “bloody sock” incident while pitching in the 2004 ALCS against the Yankees, which elevated him to legendary status in the eyes of many fans.

However, even when he was still an active baseball player, Schilling had a knack for letting his mouth get him into trouble. And it seems that retirement from the mound has failed to mellow him or his opinions. Last week, Schilling was temporarily suspended from his job as an ESPN commentator after espousing some questionable political views that compared Muslims to Nazis on his Twitter feed.

Craig took some time to explain the situation in more depth:

On August 25th, while enjoying some down time in the midst of commentating on the Little League World Series, Schilling took to his Twitter account and posted an image of Hitler, captioned with the text, “It’s said only 5-10% of Muslims are extremists. In 1940, only 7% of Germans were Nazis. How’d that go?” Alongside the image, Schilling commented, “The math is staggering when you get to true [numbers.]” Schilling apparently had second thoughts about the comment, and deleted the tweet within a few minutes of posting it. But the Internet moves quickly, and social media faster still, and by then news of the gaffe was already making headlines.

ESPN—which is owned by Disney—apparently wasn’t enamored with Schilling airing his personal views, and responded by immediately benching him for the rest of the LLWS, and also pulled him from his regular spot on Sunday Night Baseball. Schilling has yet to be reinstated, but ESPN has indicated that he will return to the airwaves on September 6th.

Did ESPN Violate Schilling’s Right to Free Speech?

The public response to ESPN’s decision has been divided. While many voiced support for ESPN’s decision to discipline Schilling, others decried the decision as a violation of Schilling’s constitutionally protected right to free speech. Craig took the time to briefly summarize the relevant section of the Constitution that critics have been citing: “Here’s the thing; the First Amendment says ‘Congress shall pass no law that abridges the right to free speech.’”

He then went on to explain the weakness in the critics’ Constitution-based argument: “So, the issue is, is that individuals, when it comes to employment or at your own home, they can discriminate against speech that they don’t like. And Congress can’t pass a law to stop Curt Schilling from saying this, but Disney sure can. And Disney says, ‘Look, you got a contract, and there’s a morality clause; you can’t do anything to basically inhibit and hurt our reputation. And when you say something like this within the context of being a commentator for the Little League World Series, you know, you’re opening yourself up to be suspended, and perhaps even fired.’

He continued, “And so, when it comes to the contract that he has, that would I’m sure be a breach of some of the clauses in that contract. So the First Amendment is irrelevant to this, because the First Amendment says Congress can’t say, ‘Hey, I don’t like what Curt Schilling just said, let’s pass a law to say nobody can say that Muslims and Nazis are equivalent…’ Congress can’t do that, the First Amendment says you cannot do that. But we as individuals can say, ‘Look… you work for me. I can terminate you.’”

Craig’s brother Scott Ashton asked, “Is that at-will? Is that [an] at-will employee?” Craig responded that Schilling “probably has a contract.” Ashton & Price Associate Edward Schade took a moment to elaborate on the details of at-will employment: “Most states are at-will contracts, meaning that the employee can walk away any time they want, and the employer can discharge somebody any time they want, as long as it’s not for [reasons related to the employee’s] race, creed, color, sex, etc.”

Craig concluded, “Ultimately, the issue really again is not the First Amendment. It’s not. It is his contract, and whether or not he’s doing something detrimental to the reputation of [the employer].”

In Conclusion…

So what’s the lesson to take away from all of this? Well, as Edward put it:

“The lesson to be learned is, for Curt Schilling, don’t go out and do a public speech after you’ve emptied the mini-bar.”

2016 Followup: Curt Schilling Fired by ESPN

Apparently, Curt Schilling didn’t learn his lesson the first time.

In March, North Carolina passed House Bill 2, which in part requires transgender persons to use public bathrooms that correspond to their birth genders, rather than the gender they identify with. This prompted a great deal of public outcry and rumblings of discontent from many major businesses and industries that do business in the state.

On Tuesday, April 19th, Curt Schilling responded to the backlash with a Facebook post that was probably in poor taste by any measure. The post featured an image that would be inappropriate to post here, and was accompanied by a written statement that began, “A man is a man no matter what they call themselves.”

A day later, ESPN responded by firing Schilling. Shortly after, ESPN issued a succinct two-sentence press release: “ESPN is an inclusive company. Curt Schilling has been advised that his conduct was unacceptable and his employment with ESPN has been terminated.”

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